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Allahabad High Court · body

2014 DIGILAW 217 (ALL)

AWADH NARAYAN v. STATE OF U. P.

2014-01-17

ANIL KUMAR SHARMA, TARUN AGARWALA

body2014
JUDGMENT By the Court.—The petitioner is working as a Clerk and was posted in various offices of the District Supply Office in various districts of Uttar Pradesh. At the relevant moment of time, the petitioner was posted in the District Supply Office at Ghaziabad. A criminal case was registered against certain employees in the year 1995 in which the petitioner was not named. It is alleged that charge-sheet against these persons was filed and the petitioner was named as a witness. However, on 28.7.2003 the petitioner was arrested, but, subsequently was enlarged on bail by an order dated 5.9.2003. On account of his detention, the petitioner was suspended by an order dated 2.8.2003. The petitioner was applied for revocation of the suspension order. The District Magistrate initiated an inquiry, in which an inquiry report was submitted and, based on this inquiry report, the District Magistrate passed an order on 12.2.2004 revoking the suspension order and reinstating the petitioner. 2. On 16.9.2006 the Senior Superintendent of Police issued a letter to the District Magistrate requesting him to grant permission for prosecuting the petitioner in Case Crime No. 201 of 1995. Opinion from the Government Advocate (Criminal) Ghaziabad was obtained, who opined that it was not a fit case for granting sanction. It transpires that, based on this opinion, the District Magistrate declined to sanction prosecution of the petitioner. 3. It transpires, that another letter was issued to the District Magistrate on 23.2.2010 seeking permission to prosecute the petitioner. Subsequently, the Deputy Secretary issued a letter dated 8.3.2010 directing the District Magistrate to grant permission to prosecute the petitioner. On the basis of this letter the District Magistrate issued an order dated 11.3.2010 granting sanction to prosecute the petitioner. The petitioner, being aggrieved by the order of the District Magistrate, has filed the present writ petition. 4. Heard Dr. Suman Kumar Yadav, the learned counsel for the petitioner and the learned standing counsel for the respondents. 5. The only ground urged before the Court is, that the District Magistrate has passed the impugned order without applying its mind and without affording any opportunity of hearing to the petitioner. The learned counsel further contended that the impugned order has been passed mechanically on the dictates of the Deputy Secretary without considering the case diary or the record, etc. The only ground urged before the Court is, that the District Magistrate has passed the impugned order without applying its mind and without affording any opportunity of hearing to the petitioner. The learned counsel further contended that the impugned order has been passed mechanically on the dictates of the Deputy Secretary without considering the case diary or the record, etc. It was contended that the sanction granted by the competent authority was defective and illegal as there was non-application of mind. Further, the impugned order does not show satisfaction of the authority or consideration of the relevant record while granting sanction. 6. Grant of sanction is a sacrosanct act and is intended to provide safeguard to public servants against frivolous and vexatious litigation. Consequently, the satisfaction of the competent authority is essential to validate an order granting sanction. 7. In Mohd. Iqbal Ahmad v. State of Andhra Pradesh, AIR 1979 SC 677 , the Supreme Court held, that it was incumbent on the prosecution to prove that a valid sanction has been granted by the sanctioning authority, and that the same would be done by producing the original sanction, which contains the fact constituting the offence and the ground of satisfaction or adducing evidence to prove that the relevant fact and the material was placed before the competent authority and that satisfaction was arrived at by the authority on the basis of the evidence produced before it. 8. In Superintendent of Police (C.B.I.) v. Deepak Chowdhary and others, 1995 (6) SCC 225 , the Supreme Court held that the necessary fact collected during investigation constituting the offence has to be placed before the sanctioning authority and that the authority was required to satisfy itself on the basis of the relevant facts and materials placed before it. 9. In C.S. Krishnamurty v. State of Karnataka, 2005 (4) SCC 81 , the Supreme Court held : “sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order.” 10. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order.” 10. In State of Maharashtra v. Mahesh G. Jain, 2013 (8) SCC 199, the Supreme Court after considering its earlier judgments culled out the following principles for consideration while granting sanction, namely, 3. From the aforesaid authorities the following principles can be culled out : (a) It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out. (b) The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution. (c) The prosecution may prove by adducing the evidence that the material was placed before sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him. (d) Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence. (e) The adequacy of material placed before the sanctioning authority cannot be gone into by the Court as it does not sit in appeal over the sanction order. (f) If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction. (g) The order of sanction is a pre-requisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity.” 11. In the light of the aforesaid, a submission was made that the impugned order granting sanction to prosecute the petitioner cannot stand the test as provided by the Supreme Court, and that the order of the competent authority sanctioning permission to prosecute the petitioner was wholly illegal. 12. We have considered the submissions of the learned counsel for the petitioner and have perused the impugned order. 13. 12. We have considered the submissions of the learned counsel for the petitioner and have perused the impugned order. 13. No doubt the sanction order does not show that the sanctioning authority had perused the material placed before it or that the authority was satisfied with the evidence that was placed before it, inasmuch as, the impugned order does not talk about the satisfaction or the materials placed before it. The Court is of the opinion that on this short ground the order cannot be set aside, on the ground of non-application of mind, inasmuch as, the prosecution could prove by leading evidence that all material particulars were placed before the sanctioning authority, who after due application of mind sanctioned permission to prosecute the petitioner. The Court finds from a perusal of paragraph 21 of the counter-affidavit that a specific averment was made that the District Magistrate had closely examined the case diary and other collected evidence and after being fully satisfied gave permission to prosecute the petitioner. The petitioner has not denied this fact in paragraph 20 of the rejoinder-affidavit to the extent that no evidence was placed before the competent authority. 14. In the light of the aforesaid, this Court is of the opinion, that the writ jurisdiction is not the appropriate forum for questioning the order of the competent authority granting permission to prosecute the petitioner. The remedy available to the petitioner is to question such sanction before the trial Court where the prosecution would be obliged to adduce the evidence and prove that relevant material was placed before the sanctioning authority and that the satisfaction was arrived at upon the perusal of the material placed before him. 15. In the light of the aforesaid, the writ petition fails and is dismissed. 16. There shall be no order as to cost. —————